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21 November 2012
According to a recent decision of the Cologne Regional Labour Court,(1) a regulation in a works agreement stating that male pilots were obliged to wear a uniform cap in the public areas of the airport premises was not deemed as discriminatory under the General Act on Equal Treatment.
The claimant was employed as a pilot by Lufthansa AG. According to the uniform works agreement which applied at Lufthansa, male pilots were obliged to wear a uniform cap within public areas of airports, whereas female pilots were free to choose whether to wear a uniform cap.
The claimant was originally assigned to a flight from Munich to New York. During flight preparation, his superior asked the claimant why he was not wearing a uniform cap. The claimant argued that the relevant regulations of the works agreement represented a violation of the General Act on Equal Treatment. Consequently, the claimant was released from the flight.
The claimant opposed the obligation to wear a uniform cap and claimed a violation of the General Act on Equal Treatment. The Cologne Labour Court decided in favour of the claimant. Lufthansa's appeal against the decision - which it based on the historical development of the captain's profession - succeeded before the Cologne Regional Labour Court. However, due to the fundamental importance of the case, the regional labour court has permitted the appeal to the Federal Labour Court.
The Cologne Regional Labour Court saw no discriminatory disadvantage within the meaning of the General Act on Equal Treatment in the relevant regulation. Viewing the uniform cap in isolation could not be considered; rather the uniform as a whole had to be taken into account. The uniforms of men and women differ. Women, for example, are allowed to wear a skirt, whereas men are prohibited from doing so. This would not be a disadvantage faced by men. Otherwise, different uniforms for men and women would always be inadmissible.
The decision affects about 3,400 pilots employed at Lufthansa. The percentage of female pilots is only 6%. It is uncertain whether this obligation also applies to pilots working at subsidiaries of Lufthansa.
The claimant may appeal to the Federal Labour Court. The regional labour court left it unclear whether the relevant regulations of the works agreement are to be interpreted narrowly or broadly. This question may also be referred to the European Court of Justice.
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